City of Olympia v. Sprout, 452--II

• Decision Date: 10 December 1971
• Docket Number: No. 452--II,452--II
• Citation: 492 P.2d 586,5 Wn.App. 897
• Parties: The CITY OF OLYMPIA, Respondent, v. Caren SPROUT, Appellant.
• Court: Washington Court of Appeals

Page 897

5 Wn.App. 897

492 P.2d 586

The CITY OF OLYMPIA, Respondent, v. Caren SPROUT, Appellant.

No. 452--II.

Court of Appeals of Washington, Division 2.

Dec. 10, 1971.

Malcolm L. Edwards, Seattle, for appellant.

Ernest L. Meyer, Olympia, for respondent.

PETRIE, Chief Judge.

Defendant was found guilty by jury verdict of violating an ordinance of the City of Olympia defining the crime of driving while under the influence of or affected by the use of intoxicating liquor.

By her first assignment of error, the defendant contends that a police officer's testimony as to the result of a breathalyzer test was inadmissible because there had been no proof that the test had been performed according to methods approved by the state toxicologist. The approved method of administering a breathalyzer test is embodied in WAC 448--12--020. The trial court may take judicial notice thereof. RCW 34.04.050. The eleven-step procedures are precisely the same as those set forth on the 'Breathalyzer Report Sheet' (exhibit 2) and individually checked off by the officer who administered the test to Mrs. Sprout at 1:59 a.m. on January 2, 1970. The officer testified that he followed each and every direction on the report sheet and that the result of the test showed a 0.12 per cent of blood alcohol by weight. There is no merit to this contention.

By her second assignment of error, defendant contends the trial court committed prejudicial error by refusing to instruct the jury as to the meaning of the presumption flowing from a breathalyzer reading in excess of 0.10 per cent in accordance with defendant's proposed instruction. That instruction proposed as follows:

You are instructed that where certain facts have been proved, the law attaches a presumption of other facts, placing upon the party against whom the presumption arises the duty of producing rebutting evidence. One of the issues in this case is whether the defendant was under the influence of intoxicating liquor. Where there is 0.10 percent or more by weight of alcohol in the defendant's blood, it is presumed that he was under the influence of intoxicating liquor. Such presumption remains in the case until it is overcome by credible evidence to the contrary.

(Emphasis added.)

It has been definitively determined that the italicized portion of that proposed instruction is an incorrect statement of the law. State v. Person, 56 Wash.2d 283, 352 P.2d 189 (1960); State v. Thomas, 58 Wash.2d 746, 364 P.2d 930 (1961). The trial court is not required to give an instruction which is erroneous in any respect. Adams v. State, 71 Wash.2d 414, 429 P.2d 109 (1967). Ironically, however, defendant was entitled to a more favorable instruction, had such an instruction been proposed. State v. Person, Supra; State v. Thomas, Supra.

In order to appreciate defendant's overall contention regarding this assignment of error it is necessary to allude to three other instructions given by the court and to which no exceptions were taken by the defendant. By instruction 5, ¹ the court advised the jury that an ordinance of the City of Olympia made it unlawful for any person to drive a motor vehicle while under the influence of intoxicating liquor. By instruction 6, ² the trial court advised the jury that another ordinance of the City of Olympia (in precisely the same language of Initiative 242, RCW 46.61.506) established that the amount of alcohol in a person's blood gave rise to certain presumptions, including

(c) If there was at that time 0.10 per cent or more by weight of alcohol in the person's blood, It shall be presumed that he was under the influence of intoxicating liquor.

(Emphasis added.)

The net effect of instructions 5 and 6 was that if the jury believed the totally uncontroverted fact that the blood alcohol reading on the breathalyzer recorded 0.12 per cent, in the absence of any instruction explaining the meaning of a statutory factual presumption, they were directed and not merely permitted to find the defendant guilty of the unlawful act. The limited nature of a statutory factual presumption was not made clear to the jury as required in Person and Thomas. Thus, the jury was not made aware that the presumption was not binding upon them nor that they were not obligated to attach any weight to it. Under such circumstances, the instructions invaded the constitutional rights of the accused to a jury trial and it would not even have been necessary to have called the court's attention to the error. State v. Peterson, 73 Wash.2d 303, 438 P.2d 183 (1968). However, in the case at bar, we believe the attention of the court was clearly directed to the fatal defect occasioned by the failure to instruct as to the meaning of a presumption, even though such defect was...